KRISPY KREME DOUGHNUTS, INC.
2012 STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT (the “Agreement”) is made as of June 2, 2014, by and between KrispyKreme Doughnuts, Inc.,a North Carolina corporation (the “Company”), and Anthony N. Thompson (the “Participant”).
W I T N E S S E T H:
WHEREAS, the Board of Directorsand shareholders of the Companyhave approved the KrispyKreme Doughnuts, Inc.2012 Stock IncentivePlan, as it may be amended (the “Plan”), for the purposes and subject to the provisions set forth in the Plan; and
WHEREAS, the Plan provides for the grant of restricted stock units; and
WHEREAS, pursuant to authority granted to it in the Plan, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has, on behalf of the Company, granted to the Participant restricted stock units with respect to the Common Stockof the Company, as set forth below; and
WHEREAS, this Agreement evidences the grant of restricted stock units under the Plan.
NOW, THEREFORE, in consideration of the foregoing, ofthe mutualpromises set forth below and for other good andvaluable consideration,the receiptand sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1.Award of Restricted Stock Units
This Agreement sets forth the terms of an award to the Participant of100,000 restricted stock units (the “Restricted Stock Units” orthe “Award”), subject to, and in accordance with, the restrictions, terms, and conditions set forth in the Plan and this Agreement. The grant dateof this award of Restricted Stock Units is June 2,2014 (the “Grant Date”). Each Restricted Stock Unit will entitle the Participant to receive one share of Common Stockat the time,and subjectto the conditions, set forthherein and in the Plan.
2.Vesting of Award; Forfeiture
If the Participant remains employedby the Company, the Participant shall becomevested in the Restricted Stock Units in four installments beginning on June 2, 2015,and continuing on the next three anniversaries ofsuch date (each such date shall be a “VestingDate”), allas set forth below:
| | Number of |
| | Restricted Stock |
| | Units that Vest |
| Date | | on Such Date |
| 6/2/15 | | 25,000 |
| 6/2/16 | | 25,000 |
| 6/2/17 | | 25,000 |
| 6/2/18 | | 25,000 |
Any unvested Restricted StockUnits shall be automatically forfeited upon the Participant’s Termination of Employment for any reason (whether by theCompanyor the Participant and whether voluntary or involuntary) other than a Termination ofEmployment due to theParticipant’s death orDisability,or a Termination ofEmployment after becoming Retirement Eligible, or as provided in Section 7 hereinin the event of a Change in Control or as provided pursuant to the termsof that certain Employment Agreement dated as of May 13, 2014 between the Company, Krispy Kreme Doughnut Corporation and the Participant (the “Employment Agreement”). Inthe event (a) of a Termination of Employmentof the Participant due to his or her death or Disability, or (b) the Participant becomes Retirement Eligible,his or her Restricted Stock Units shall become immediately vested infull, provided, however, that distribution of the shares of Common Stock subject to such Restricted Stock Units shall bemade only as provided in Section 4 herein. For purposesof this Agreement, employmentwith a Subsidiary or other Affiliateof the Company shall be considered employment with the Company. Unless otherwise provided by the Committee, all amounts receivable in connection with any adjustments to the Common Stock under Section 4.4 of the Plan shall be subjectto the vestingschedule inthis Section 2. For clarity, the terms of the Employment Agreement relating to the Award are hereby incorporated by reference andmade a partof this Agreement.
3.No Rights as a Shareholder
Prior to vesting of theRestricted Stock Units and delivery of the shares of Common Stock to the Participant, the Participant shall not have any rights orprivileges of a shareholder as to the shares of Common Stock underlying such Award. Specifically, the Participant shall not have the right to receive dividends or the right to votesuch shares of Common Stock prior to vestingof the Restricted Stock Units and delivery of a certificate(s) (or other evidence of ownership, such as book entry)for the shares of Common Stock.
4.Distribution of Common Stock
Subject to the terms of Sections 8 and 24, and except as otherwise provided in this Section4, the Company shall distribute to the Participant (or his or her heirs in the eventof the Participant’s death)at the timeof vesting of the Restricted Stock Units (as provided in Section 2 or Section 7 hereof), a number of shares of CommonStock equal to the number of Restricted Stock Units then held by the Participant that becamevested at such time. Shares of Common Stock or any other benefit subject to the Restricted Stock Units shall, upon vestingof the Restricted Stock Units pursuant to Section2 or Section 7 (and except as otherwise provided in Section2 and Section 4 herein in the event of Retirement Eligibility), be issuedand distributed to the Participant (or his or her beneficiary) no later than the later of (a) the 15th day of the third month following the Participant’s first taxable year inwhich the amount is no longer subject to a substantial risk of forfeiture, or (b) the 15th day of the third month following the endof the Company’s first taxable year in which the amount isno longer subject to a substantial risk of forfeiture, or otherwise in accordance withCode Section 409A. Shares subject to the Restricted Stock Units which become vested upon the Participant’s becoming Retirement Eligible shall be distributed upon the first to occur of (i) each Vesting Date(s) as specified in Section 2 herein, (ii) the date of the Participant’s Termination of Employment (that is, the date of the Participant’s separation from service, as defined under Code Section 409A) after becoming Retirement Eligible, (iii) the date of the Participant’s death, (iv) the date of the Participant’s Disability (as defined under Code Section409A), or(v) the date of theParticipant’s Termination of Employment by the Companynot for Cause or by theParticipantfor Good Reason within two years after the effective date of a Change in Control (as defined under Code Section 409A). Shares to be distributed as provided inthe preceding sentence (following vesting due to Retirement Eligibility) shall be distributed within 90 days of the first to occur of the dates described in (i) through (v) of the preceding sentence (provided that in no event shall the Participant have theright to designate the taxable year in which such distribution shall occur).
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5.Certificates
Except as otherwise provided in Section 4 herein (regarding Retirement Eligibility) upon the vesting of the Restricted Stock Units pursuant to the terms hereof and the satisfactionof any withholding tax liability pursuant to Section 8 hereof, certificates evidencing the shares of Common Stock required to bedelivered pursuant to the terms hereof shall be deliveredto the Participant or otherevidence ofownershipof such shares of Common Stock shall be provided to the Participant, such as trackingthrough book entry.
6.Nontransferability
Unless the Committee determines otherwise, no grant of, nor any right or interestof the Participant in or to,the Awardmay be assigned, encumbered, or transferred except, in the event of the death of Participant, by will or the laws of intestate succession.
7.Change in Control
Notwithstanding the other provisions of the Agreement, the following provisions shall apply in the event of a Change in Control(except to the extent otherwise provided pursuant to the Employment Agreement):
(a)To the extent the successor company does not assume or substitute for theAward (or theCompany is the ultimate parentcorporation and doesnot continue the Award) on substantially equivalent terms (as determined by the Committee), the Award will becomevested in full upon the effective date of the Change in Control.
(b)Further, in the event that the Award is substituted, assumedor continued, the Awardwill become vested in full if the Participant incurs a Termination of Employmentwithin six months before (in which case vesting shall not occur until the effective date of the Change in Control) or two years after the effective date of a Change in Control if such Termination of Employment (i) is by the Company not for Cause or (ii) isby the Participant for Good Reason. For the purposes herein, (A) “Good Reason” shall have the meaning set forth in Section 22(c) of the Agreement; and (B) “Company” shall include thesuccessor to the Company’s business or assets,or if all orsubstantially all of thevoting stock of the Company is held by anotherpublic company, such public company.
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8.Taxes and Withholding
(a)TheParticipantshall be responsible for all federal, state, local, and foreign incometaxes payable with respect to theAward. TheParticipantacknowledges that heor she may incur substantial tax liability arising out of thegrant, vesting, and/orsettlementof the Award and that theCompany has no responsibility to take or refrain from taking any actions in order toachieve a certain tax result for the Participant.
(b)TheCompany shall have the right to retain and withhold from any distribution of Common Stock in respect of Restricted Stock Units theminimum amount of taxes (including but not limited to the Participant’sFICA obligation) required by anygovernmentto be withheld or otherwise deductedand paid with respect to such Restricted Stock Units. Atits discretion, the Company may require the Participant to immediately pay the Company in cashor reimburse the Company for any such taxes required to bewithheld and may withhold any distribution inwhole or in part until the Company is so paid or reimbursed. In lieu thereof, the Company shall have the right towithhold from any other cash amounts due tothe Participant an amount equal to such taxes required to be withheld or withholdand cancel(in whole or in part) with respectto the Restricted Stock Units a number of shares of CommonStock having a marketvalue equalto the amountof such taxes. In addition, unlessthe Committee determines otherwise and subject to such conditions asmay be established by the Committee, the Participant may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold shares of Common Stock with a Fair Market Value equal to the minimum statutory tax required to be withheld. The rightto withholdshares of Common Stock with a Fair Market Value equal to (but not in excess of) the minimum statutory tax required to be withheld to satisfy the withholding requirement may bewithdrawnby the approval of the Committee.
9.Amendment of Agreement
This Agreement may be modified, amended, suspended, orterminated, and any terms or conditions may bewaived, butonly by awritten instrument executed by theparties hereto and otherwise in accordance with the Plan. Notwithstanding the foregoing, the Committee shall have unilateral authorityto amend the Agreement (without the Participant’s consent) to theextent necessary to comply with Applicable Law or changes to Applicable Law (including but in no way limited to Code Section 409A and federal securities laws).
10.Severability
The provisions of thisAgreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in wholeor in part, the remaining provisions, and any partially unenforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
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11.Notices
Any and allnotices under this Agreement shall be in writing, and sent by hand delivery or by certified or registered mail (return receipt requested and first-class postage prepaid),in the case ofthe Company, to its principal executive offices to the attention of the Chief Financial Officer, and, in the case of the Participant, to theParticipant’s addressas shown on the Company’s records.
12.Successors and Assigns
(a)ThisAgreementshall be binding upon and inure to the benefitof any assignee or successor in interest to the Company, whether by merger, consolidation, orthe sale ofall or substantially all of the Company’s assets.
(b)ThisAgreementshall be binding upon and inure tothe benefitof the Participant and hisor her legal representative and any person towhom the Restricted Stock Units may be transferred by will,the applicable laws of intestate succession, orotherwise in accordance with the terms of the Plan.
13.Agreement to be Bound by Plan
The Participant herebyacknowledges that theParticipant fully understands hisor her rights under the Plan and that the Participant agrees tobe bound by all the terms and provisions of the Plan. The Participant acknowledges that the Participant has received a copy of the Plan prospectus.
14.Plan Controls
This Agreement and the Award aresubject in all respects to the termsand conditions of the Plan (which are incorporated herein by reference). Except asotherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan. To the extent that any conflict may existbetween any term or provision of this Agreement and any term or provision ofthe Plan, such term or provisionof the Plan shall control,unless the Committee determines otherwise.
15.No Right to Employment or Future Grants; Compliancewith Applicable Law
(a)Nothing in thisAgreement shall be construed as constituting a commitment, guarantee, agreement, or understanding of any kind ornature that the Company, any Subsidiary, or anyAffiliate shall continue to employ the Participant, nor shallthis Agreement affect in any way the right of the Company, any Subsidiary, or anAffiliate toterminate the employment or other service of theParticipantat any timeand for anyreason. Bythe Participant’s execution of this Agreement, the Participant reaffirmsand acknowledges and agrees that the Participant’s employment or other service tothe Company, any Subsidiary, or any Affiliate is “at will.” The Participant acknowledges and agrees that the award and acceptance of Restricted StockUnits pursuant to this Agreement does not entitlethe Participant to future grants under the Planor any other plan.
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(b)TheCompany may imposesuch restrictions on the Restricted Stock Units, the shares of CommonStock underlying the Award and any other benefits underlying the Award as it maydeem advisable, including, without limitation, restrictions under thefederal securities laws, the requirements of anysecurities exchange or similar organization, and any blue sky, state, or foreign securities laws applicable to suchsecurities. The Company shall not be obligated to issue, deliver, or transfer shares of Common Stock,make any other distribution of benefitsunder the Plan, or takeany other action, unlesssuch delivery, distribution, or action is in compliance with Applicable Law (including but not limited to the requirements of the Securities Act). The Company will be under no obligation to register the shares of Common Stock or other securities with the Securitiesand Exchange Commission or to effect compliance with the exemption, registration, qualification, or listing requirements of any state orforeign securities laws, or any securities exchange or similarorganization, and the Company will have no liability for any inability orfailure to do so. The Company may cause a restrictive legend or legends to be placed on any certificate issued pursuant to the Award in such form asmay be prescribed from time to time by Applicable Law or asmay be advised by legalcounsel.
16.Covenants and Representations of Participant
The Participant represents, warrants, covenants,and agreeswith the Company as follows:
(a)TheParticipant has not relied uponthe Company with respect to any tax consequences related to the Award or shares of Common Stock subject thereto. The Participant assumes full responsibility forall such tax consequences and the filing of all tax returns the Participant may be required to file in connection therewith.
(b)TheParticipant will not distribute or resell any Common Stock (or other securities) issuablehereunder in violation of Applicable Law. TheParticipantshall comply with all provisions of theCompany’s SecuritiesTrading Policy, as in effect from time to time.
(c)The agreements, representations, warranties, and covenants made by the Participant herein with respect to the Restricted StockUnits shall also extend and apply to all of the shares of Common Stock issued to the Participant from time to time pursuant to the Restricted Stock Units. Acceptance by the Participant of any certificate representing shares of Common Stock (orother evidence of beneficial ownership) shall constitute a confirmationby the Participant that allsuch agreements, representations,warranties,and covenants madeherein continue to be true and correct at that time.
(d)As a condition to receiving this Award, the Participant agrees to abide by the Company’s StockOwnershipand Equity RetentionPolicy, CompensationRecovery Policy, and/or other similar policies, each as in effect from time to time and to the extent applicable to the Participant. In addition, the Participant shall besubject tosuch compensation recovery, recoupment, forfeiture, or other similarprovisionsas may apply to theParticipantunder Applicable Law.
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17.Governing Law
This Agreement shall be governedby, construed, and enforced in accordance with the laws ofthe State of North Carolina, without giving effect to the principles ofconflicts of laws, and in accordance with applicable federal laws.
18.Waiver
The waiverby the Company of abreach ofany provision of thisAgreement by the Participant shall not operate or be construed as a waiver of any subsequent breach by the Participant.
19.Limitation of Liability
The liability of the Company under this Agreement and in the award of the Restricted Stock Units hereunder is limited to the obligations setforth herein with respect to such Award, and nothing herein containedshall be interpreted as imposingany liability in favorof the Participant or any others with respect to any loss, cost,or expensewhich the Participant orothers may incur in connection withor arising out of any transaction involving the RestrictedStock Units orthe shares of CommonStock subject thereto.
20.Entire Agreement
The partieshereto agree that this Agreement sets forth allof the promises, agreements, conditions, understandings, warranties, and representations between the parties with respect to the Award and that there are nopromises, agreements,conditions,understandings, warranties, or representations, oral or written,express or implied between the parties with respect to theAward other than as set forth in this Agreement and in the Plan.
21.Authority of Committee
All determinations made by the Committee with respect to the interpretation, construction, and application of any provision of thisAgreement shall be final, conclusive, and bindingon the parties.
22.Definitions
(a)“Retirement Eligible” or“Retirement Eligibility”shall mean a time when the sum ofthe Participant’s age and years ofemployment with theCompany, its Subsidiaries, or other Affiliates equals or exceeds 65, provided that the Participant shall have attained a minimum age of 55.
(b)“Termination of Employment” means the discontinuance of the Participant’s servicerelationship with the Company, its Subsidiaries, or another Affiliate,including but not limited to service as an employee of the Company, its Subsidiaries,or anotherAffiliate, asa non-employee member of the Boardof Directors of the Company, or as a consultant or advisorto the Company, its Subsidiaries, or another Affiliate. Except to the extent provided otherwise in an agreement or determined otherwise by theCommittee, a Termination of Employment shall not be deemed to haveoccurred ifthe Participant transfers among the various entities constituting the Company and its Subsidiaries, so longas there is no interruption in the provision of service by theParticipantto the Company andits Subsidiaries. The determination of whether a Participant has incurred a Termination ofEmployment shall bemade by the Committee in its discretion. The Participant shall not be deemed to have incurred a Termination of Employment if the Participant ison military leave, sick leave, or other bona fideleave of absence approved by the Company of 180 days or fewer (orany longer period during which the Participant is guaranteed reemployment by statute or contract). In theevent theParticipant’s leave of absence exceedsthis period,he or she will be deemed to have incurred a Termination of Employment on the day followingthe expiration date of such period, unless determinedotherwise by the Committee.
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(c)“Good Reason”shall have the meaningassigned tosuch term in the employment agreement, if any,between the Participant and theCompany, a Subsidiary, or an Affiliate, provided, however that if there is no such employmentagreement in which such term is defined, “GoodReason” shall mean any of the following acts by the Company, aSubsidiary,or an Affiliate within the six-monthperiod before or two-year periodafter the effective date of a Changein Control,without the consent ofthe Participant (in each case, other than an isolated, insubstantial, and inadvertentaction nottaken in bad faith andwhich isremedied by the Company, a Subsidiary, or anAffiliate promptly after receipt of notice thereof given by the Participant): (i) the assignment to theParticipantof duties or responsibilities materially inconsistent with, or a material diminution in, the Participant’sposition, authority, duties, or responsibilities as in effect on the date of the Change in Control, (ii) a material reductionin the Participant’s base salary as in effect on thedate of the Change in Control, (iii) except with regard to international employees, the relocation,without consent, of the Participant’sprincipal place of employment morethan 25 miles from the locationat which the Participant was stationed immediately prior to the Change in Control, or (iv)any material breach of any employment agreement betweenthe Participant and theCompany, a Subsidiary, or an Affiliate; provided that any event described in clauses(i) through(iv) aboveshall constitute Good Reason onlyif the Company fails to rescind or cure such event within 30days after receipt fromthe Participant of writtennotice of the event which constitutes Good Reason; andprovided, further, thatGood Reasonshall cease to exist foran event orcondition described inclauses (i) through (iv)above on the 60th day following thelatter of its occurrence or the Participant’s knowledge thereof, unless the Participant has giventhe Company written notice thereofprior to such date.
23.Forfeiture in the Event of Competition and/or Solicitation or other Detrimental Acts
In return for granting the Restricted Stock Units to the Participant, theParticipantagrees to the following restrictions.
(a)TheParticipant expressly agrees and covenants that during theRestrictedPeriod (as defined below),the Participant shall not, without the prior written consent of the Company, directlyor indirectly:
(i)own, manage, control, participate in, consult with, become employed by, or otherwise renderservices toany Competitive Business (as defined below) in the Territory (as definedbelow), except that it shall not be considered aviolation of this clause for the Participant to be apassive owner of not more than two percent ofthe outstanding stock of any classof any corporation which is publicly traded, so long as the Participant has no active participationin the business of such corporation;
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(ii)induce or attempt to induce any customer, supplier, client, or other business relation ofthe Company or its Affiliates to cease doing business with the Company or its Affiliates if such cessationcould reasonably be expected to result in material harmto the Company;
(iii)induce or attempt to induce any employee ofthe Company or its Affiliates to leavethe employof the Company or its Affiliates, orin any wayinterfere with the relationship between the Company or its Affiliates and any person employed bythem; or
(iv)violate the Company’s SecuritiesTrading Policy.
(b)TheParticipantexpressly agrees andcovenants that the Participant will not, withoutthe prior written consent of the Company, directly or indirectly, disclose or useat any time before or after the Participant’s Termination of Employmentany Confidential Information (as defined below) of which the Participant is or becomes aware, whether or not such information is developed by theParticipant, except to the extent such disclosureor use is directly related to and appropriate in connection with the Participant’s performance ofduties assigned to the Participant by the Company or its Affiliates. Under all circumstances and at all times, the Participant will take all appropriate stepsto safeguard Confidential Information in hisor her possession and to protect it against disclosure, misuse, espionage, loss, and theft.
(c)If the Committee determines that the Participant has violatedany provisions of this Section 23 or that the Participant’s employmenthas been terminated for Cause, then the Participant agrees and covenants that:
(i)the Participant shallautomatically forfeit any rights the Participant may have with respect to the Awardor the underlying shares of Common Stock as of the date of such determination; and
(ii)if the Participant has receiveda distribution of all or any partof the Common Stock subject to theAward within the twelve-month period immediately preceding a violation of this Section 23 or terminationof the Participant’s employment for Cause, upon the Company’s demand, the Participant shall immediatelydeliver to the Company (A) the shares of Common Stock subject to theAward which have been distributed during such period (without the payment by theCompany of any consideration forsuch shares), if the Participant still owns such shares, or (B) if the Participant no longer owns such shares of CommonStock, an amount equal tothe Gain realized by the Participant with respect to the shares of Common Stock subject to the Award. For the purposesherein, “Gain” shall beequal to the dispositionprice per share of any shares of Common Stock received pursuant to theAward which shares were sold or disposed of, multiplied by the number of such shares sold or disposed of, and less any taxes paidwhich are not refundable or for which the Participant does not otherwise receive a tax credit or other form ofreimbursement.
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(d)Definitions. Forpurposes of this Section23 the following definitions shall apply:
(i)“Competitive Business” means any businesslisted on Exhibit A hereto.
(ii)“Confidential Information”means information that is not generally known to the public and thatwas oris used, developed, or obtained by the Companyor its Affiliates in connection with the business of the Company or its Affiliates andwhich constitutes trade secrets or information which they have attemptedto protect,which may include, butis not limitedto, trade “know-how,” customer information, supplier information, cost and pricing information, marketing and sales techniques, strategies and programs, computer programs and software, and financial information. It shall not include information (A) required to be disclosed by court or administrative order; (B) lawfully obtainable from other sourcesor which isin the public domain through no fault of Participant; or (C) the disclosure of which is consented to in writingby the Company.
(iii)“Restricted Period”means the period during which the Participant is employed by the Company or an Affiliate and twelvemonths following the date that Participant ceases to be employed by the Company or an Affiliate for any reason whatsoever.
(iv)“Territory” means:
(A)The entire United States and any other country where the Company or any of its Subsidiaries, joint venturers, franchisees, or Affiliates has operated a retail facility atwhich the Company’s products have been soldat any timein the one-year periodending on the last dayof the Participant’s employment with the Company or itsAffiliates;
(B)In the eventthat the preceding clause shall be determined by judicial action to define toobroad a territory to beenforceable, then “Territory” shallmean the entire UnitedStates;
(C)In the eventthat the preceding clauses shall be determined by judicial action to define toobroad a territory to beenforceable, then “Territory” shall mean thestates in the United States where the Company or anyof its Subsidiaries, joint venturers,franchisees, or Affiliates has operated a retail facility at which the Company’s products have been sold at any time in the one-year period ending on the last day of the Participant’s employmentwith the Company or itsAffiliates;
(D)In the eventthat the preceding clauses shall be determined by judicial action to define toobroad a territory to beenforceable, then “Territory” shallmean the area that includes all of the areas thatare within a 50-mile radius of any retail store location in the UnitedStates at which the Company’s products havebeen sold at any time in the one-year periodending on the last dayof the Participant’s employment with the Company or its Affiliates; and
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(E)In the eventthat the preceding clauses shall be determined by judicial action to define toobroad a territory to beenforceable, then “Territory” shallmean the entire state ofNorth Carolina.
(e)TheCompany may require the Participant, in connection with the distribution of shares of Common Stock underlying the Award, to certify ina manneracceptable to the Company that the Participant has not violated the terms of this Section 23 and may decline to distribute such shares if the Participant fails so to certify. If the Participant isrequired torepay any amount to the Company pursuant to this Section 23, the Participant shall pay such amount in such manner and on such terms and conditions as theCompany may require,and the Company shall be entitled towithhold orset-off against any other amount owed to theParticipantby the Company or any ofits Affiliates (other than any amount owedto the Participant under any retirement plan intended to be qualified under Code Section 401(a)) up to anyamount sufficient to satisfy any unpaid obligationof the Participant underthis Section 23.
(f)TheParticipant acknowledges and agrees that the period, scope, and geographic areas of restrictionimposed upon the Participant by the provisions of Section 23 are fair and reasonable and are reasonably required forthe protection of the Company. In the event that any part of this Agreement, including, without limitation, this Section 23, is held to be unenforceable or invalid, the remaining parts of Section 23 and this Agreement shall nevertheless continue to be valid and enforceable as thoughthe invalidportions were not a partof this Agreement. If any one of the provisions in this Section 23 is held to be excessively broad as to period, scope, and geographic areas, any such provision shallbe construed by limiting it to the extent necessary to be enforceable under Applicable Law.
(g)TheParticipantacknowledges that breach by the Participant of this Agreement would cause irreparable harm to the Company and that, in the event ofsuch breach, the Company shall have, in addition to monetary damagesand other remedies at law, the right to an injunction, specific performance, and other equitable relief to preventviolations of the Participant’s obligations hereunder.
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24.Code Section 409A
If and to the extent that Code Section 409Ais deemedto apply to the Award, it is intended that thisAgreement and the Award shall, to the extent practicable, be construed in accordance therewith. Notwithstanding any provisionto the contrary in thisAgreement,if the Participant is deemed on the date of his orher “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any paymentthat is considered deferred compensation underCode Section 409A payable on account of a“separation from service” that is required to be delayed pursuant to Code Section 409A(a)(2)(B) (after taking into accountany applicable exceptions to such requirement), such payment shall be made on the date that is the earlier of (i) the expiration of the six month period measured from the dateof the Participant’s “separation fromservice” (with such payments tobe made during the seventh month following the “separation from service”, or, if earlier, (ii) the date of the Participant’s death, or otherwise permitted under Code Section409A (the “Delay Period”). Upon the expiration of the Delay Period,all payments delayed pursuant to this Section 24 shall be paid to the Participant in a lump sum. Notwithstanding any provision of this Agreement to the contrary, for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment constituting deferred compensation for purposes of Code Section 409A, references to the Participant’s “termination of employment” (and corollary terms) with the Company shall be construed to refer to the Participant’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company. In the event that the Award, this Agreement, or the Plan is deemed not to comply with Code Section 409A, then neither the Company, the Board of Directors, the Committee, nor its designees or agents will be responsible to the Participant or any person for actions, decisions, or determinations made in good faith.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| | KRISPY KREME DOUGHNUTS, INC. |
| | |
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| By: | /s/ Douglas R. Muir |
| Title: | Chief Financial Officer |
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| PARTICIPANT |
| |
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| Signature: | /s/ Anthony N. Thompson |
| Printed Name: | Anthony N. Thompson |
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Exhibit A
The following businesses, together with their Subsidiaries, affiliates and successors in interest, are the “Competitive Businesses” for purposes of this Agreement:
Dunkin Brands Inc.
Tim Hortons, Inc.
George Weston Limited
Flowers Foods, Inc.
McKee Foods Corporation
Bimbo Bakeries USA, Inc.
Hostess Brands, LLC
Panera Bread Company
Starbucks
Dewey’s Bakery
Salem Baking Company
Dawn Food Products, Inc.
CSM Bakery Products
And any other business that derives more than fifty percent (50%) of its revenues from the indirect or direct sale of coffee, doughnuts and/or bakery or sweet goods.
The Company reserves the right to modify or amend thisExhibit A at any time and from time to time.
